A parent who has primary care of a child and is considering relocating to another state or move within Colorado to a new location which makes it impracticable for the other parent to exercise parenting time, it is very important to consult with a knowledgeable attorney. The underlying analysis and consideration presented in a relocation case is extremely complex and multi-faceted. It is important to obtain the expertise of an experienced Denver divorce attorney with regard to relocation cases. Gary Gottesfeld is very experienced in this area and has handled a significant number of relocation cases. He will objectively evaluate your case and work diligently to obtain a favorable resolution of your matter.
The relocation of a custodial or residential parent to another state following a divorce or custody matter is a very difficult issue which has changed rapidly and evolved in recent years. Relocation of children is replete with controversy and complications and is one issue upon which many people simply are unable to find common agreement or reach common ground. We live in a society that continues to become increasingly mobile and the issue arises as to whether access between a parent and child ultimately may be more important than the right to for a parent to move. In addition to business and economic forces, including businesses that require relocation from geographical area to another, a whole host of other factors need to be considered. The outcome of relocation cases is affected by the rights of individuals and families, acknowledgement by the legal system of children’s rights and the conflict over what form of access between parent and child minimizes the chances of negative effects of the divorce upon the child’s development.
Colorado, as well as most states, start with a general rule that a determination must be made as to what is in the “best interest” of the child. This analysis includes factors set forth by statute and case law. Initially, when a case is pending for divorce, legal separation or allocation of parental responsibilities (custody), Colorado prevents either party from removing the children from Colorado without permission of the other party or order from the Court. At the time of final Orders, should one parent intend to reside in another state, the Court will make a determination as to where it is in the best interest of the child to reside a majority of the time. The standard and criteria are different after a final Order has been entered and the primary residential custodian (or the co-parent with equal parenting time) seeks to relocate to another state or location which substantially changes the geographical ties between the children and other parent.
Colorado Procedure for Relocation
Colorado law sets forth the following when the residential or primary parent (or co-parent with equal parenting time) desires to relocate with the child or children to a location which substantially changes the geographical ties between the children and the other parent:
- Written notice of intent to relocate must be set as soon as practicable to the other parent;
- Detailed information concerning the location where the party intends to reside;
- The reasons and considerations that the residential parent wishes to relocate; and
- A proposed revised Parenting Plan.
Under Colorado law, hearings on relocation are to be given priority by the Court for determination of whether relocation would be in the children’s best interest. The Court will consider such factors as:
- Reason for the requested relocation;
- Reasons why the other parent objects to the proposed relocation;
- History and quality of each parent’s relationship with their child;
- Any previous parenting time Order;
- Educational opportunities for the child at the existing location and the proposed new location;
- Presence or absence of extended family both at the existing location and the proposed new location;
- Any advantages of remaining with the primary care giver;
- Anticipated impact the move may have upon the child;
- Whether the Court will be able to fashion a reasonable parenting time schedule if the requested change is permitted; and
- If any spousal abuse has occurred before or after the previous Order.
Currently Colorado law provides that at the time of the initial allocation of parental responsibility determination (custody), the Court is required to accept the location in which each party intends to reside and to make appropriate parenting time decisions which are in the child’s best interests given the place of residence of each parent. Spahmer v. Gullette, 113 P.3rd 158 (Colo. App. 2005).
The Court has different considerations when a final Order has already been entered and after that Order, the residential parent desires to move out of state or a significant distance. In these cases, a post-decree motion is filed and the Court is governed by the criteria outlined in C.R.S. § 14-10-129 rather than the criteria required when making an initial determination which is C.R.S. § 14-10-124 which outlines the criteria for the “best interest of the children.”
The issue of relocation as a modification of an existing custody and parenting time Order was addressed by the Colorado Supreme Court in the case of Ciesluk in which the Court found that three competing interests must be considered:
- The majority (or primary residential) parent’s right to travel;
- The parent with the minority amount of parenting time right to parent and relationship with their children; and
- The general best interest of the children.
This case goes into significant details and presents many factors for the Court to consider if relocation is in the child’s “best interest.”
Relocation cases are primarily fact sensitive and result-oriented. The breadth of those considerations that is required for presentation to the Court is crucial in order for the Court to have a sufficient factual basis to make a determination as to whether a requested relocation will or will not serve the child’s best interest.
Contact Gary Gottesfeld today to discuss your child relocation issues. A free consultation is offered to all new clients. Mr. Gottesfeld can be reached at 303-892-7000 or via email below to schedule an appointment.